Free movement of persons in the European Economic Area (EEA) – different from the EU?

Free movement of
persons continues to be debated in the UK after the Brexit referendum and the
EEA Agreement is often referred to regarding the UK's future relationship with
the EU. This post intends to address two differences in the right to free
movement of persons in a model of association with the EU outside membership –
the EEA Agreement compared to the right to free movement of persons in the EU.

The EEA
Agreement extends the EU internal market to include three of the parties to
the European Free Trade Association (EFTA) – Norway, Iceland and Liechtenstein
– but without membership in the Union. The extension of the internal market
means, in principle, parallel rights and obligations in the area of free
movement (including the right to free movement of persons) and competition law.
Nevertheless, certain products (fish and agricultural products, see Article
8(3) EEA) and tax harmonisation are outside the scope of the Agreement.

However, there
are two differences between being subjected to the right of free movement of persons
as a Member State of the EU compared to that of being a Contracting Party to
the EEA Agreement. The first is the lack of Union citizenship in the EEA. The
second is that immigration from other non-EU countries is outside the scope of
the Agreement. Hence, free movement of persons is clearly different in the EEA
compared to the EU – although the EFTA States have signed up to be part of the
EU’s non-EU immigration rules (the Schengen open borders rules and the Dublin
rules on asylum responsibility) separately. As will be demonstrated
institutional practice (in particular the EFTA Court's case law regarding
citizens' right to free movement) has nevertheless made the implications of
these differences in the legal framework unclear.

In legal terms,
the two differences are expressed first, through the fact that there are no
corresponding provisions to the relevant EU primary law; hence Articles 20-25
TFEU regarding the creation of the concept of Union citizenship and Article 79 TFEU
on rights of non-EU citizens are not paralleled in the EEA Agreement. Second,
there are parallel differences in secondary legislation: EU laws on non-EU
citizens such as Directive
2003/86/EC on the right of family reunification and Directive
2003/109/EC on rights of long term residents have not been made part of the
annexes of the EEA Agreement. Furthermore,
the two differences were recently emphasised by the Contracting Parties in a
Joint Declaration, which was adopted when the EU’s citizens’
Directive (the main secondary legislation regarding the right to free
movement of citizens) was made part of EEA law (Decision
by the EEA Joint Committee No 158/2007).

That Decision enshrined
the citizens' Directive as part of the EEA Agreement through an amendment of Annexes
V and VIII to that agreement, with the usual adaptations such as substituting
the words 'Union citizen(s)' with the words 'national(s) of EC Member States
and EFTA states. The citizens' Directive entered into force in the EEA on 1
March 2009 and has been the subject of four EFTA Court cases; E-4/11 Clauder
(Liechtenstein), E-15/12 Wahl
(Iceland), E-26/13 Gunnarsson
(Iceland) and finally the recent case of E-28/15 Jabbi
(Norway).

Since the late
1990s the CJEU has applied the status of Union citizenship to create rights in
the field of extending territorially bound social security rights, to ensure
patient's rights to have treatment abroad paid for by domestic welfare systems,
to ensure the export of student financing as well as ensuring rights for non-EU
citizens as family members of Union citizens. All this case law has been
inspired by or legally based on the fundamental status of Union citizenship.
Hence, the construction of Union citizenship has contributed to EU law,
including EU institutional practice, having an impact on national domestic
systems of welfare and immigration. Union citizenship is part of increasing and
deepening the EU integration process. Free movement rights for individuals
detached from market objectives substantiate Union building. Citizens should
ideally move freely, and therefore, states have obligations not to create
barriers to movement.

No parallel
objective exists in the economic and market oriented scope of the EEA
Agreement. The EEA Agreement is, however, a complex legal construction where
the principles of dynamism and homogeneity with EU law have been afforded
significant weight in the institutional practice (see for a recent reference to
the substantial weight of the homogeneity objective in paragraph 60 of Jabbi). Hence, the EU/EFTA institutions
applying EEA law have significantly paralleled the aforementioned developments in
the EU legal order and included parallel rights for individuals with
corresponding obligations on states into the EEA legal order (despite the lack
of parallel provisions on EU citizenship); social security rights for the
non-economically active movers (see Cases E-5/06 ESA
v Liechtenstein, E-4/07 Porkelsson,
E-3/12 Jonsson,
E-6/12
export of child care benefits, E-26/13 Gunnarsson
and C-431/11 UK v
Council), free movement rights for patients (see Joined Cases E-11/07
and 1/08 Slinning
and Rindal), export of student benefits (see EFTA Surveillance Authority
Cases No 69199
and No 71579),
rights for family members of non-economically active EEA citizens (see Case E-4/11
Clauder and EFTA Surveillance
Authority Case No 73930
(pending)).

The EU/EFTA
institutional practice on the right to free movement of persons in the EEA
Agreement has reached its possible peak with the case of E-28/15 Jabbi. The question in the case was at
the core of evolving EEA law – a possible right to family reunification with a non-EU
citizen for a non-economically active EFTA state national who had availed
herself of free movement rights and who was in receipt of welfare
benefits. The EFTA Court's advisory opinion recognised that there are differences
in the legal framework between the free movement of persons in the EEA compared
to the EU, especially as regards EU citizenship (see paragraph 66 in particular).
The Court refers to a gap due to the revised primary law of the EU in the
Maastricht, Amsterdam, Nice and Lisbon Treaties with no corresponding changes
in the main part of the EEA Agreement. The Court also recognised the
differences by making it explicit that it has to rely on the legal sources
available as part of EEA law (and consequently that the EFTA Court cannot rely
on the same legal basis as the CJEU did in a similar case decided in 2014
(discussed here),
given that Union citizenship has not been made part of EEA law) (see paragraphs
68 referring to an 'authority included in the EEA Agreement' and 71 referring
to the citizens’ Directive being ruled out by the CJEU in the current
situation).

The principal
question in the case (answered by the EFTA Court in the affirmative) was
whether a non-economically active EEA citizen seeking family reunification with
a TCN national has rights based on EEA law when returning to his or her country
of origin. In other words, the question was whether the situation is governed
exclusively by national domestic law or whether rights may also be derived from
EEA law.

The question of
scope was challenging in the EEA context given the limitation of the citizens'
Directive: it only applies to EEA citizens who have moved to a host state (with
the exception of Chapter 2 regarding particular situations of exit visa etc,
which were of no relevance to the case). The Jabbi case concerns instead the situation of rights against the home
state, after having moved to another EEA state, and then returned. Rights
against the home state for a non-economically active Union citizen falls within
the scope of EU law through the concept of Union citizenship as enshrined in
the primary EU law articles which are not paralleled in the EEA. Through the
advisory opinion in Jabbi the EFTA Court took yet another step to ensure
parallel rights to free movement of persons in the EEA as compared to the EU,
transposing to the EEA legal order the relevant case law of the CJEU (discussed
here), despite those differences in the EU and EEA legal frameworks.

However, the
Union citizenship case law of the CJEU includes situations where no similar
authority exists in the EEA such as the Ruiz
Zambrano case law (see case C-34/09), where rights accrue to EU
citizens solely by virtue of their EU citizenship, rather than because of
movement between EEA members. In addition, the Union citizenship case law
includes elements of mutual financial solidarity legitimating EU law having an
impact on national welfare systems, see cases on students' rights against their
home state in cases like C-359/13 Martens,
C-220/12 Thiele and C-585/11 Prinz and Seeberger (discussed here).
This aspect of mutual solidarity was also part of the reasoning in the early
case law establishing Union citizenship as a fundamental status; see i.a. cases
like C-184/99 Grzelczyk
and C-209/03 Bidar
regarding students' right to welfare benefits in the host state. Decisional
practice from the EFTA Surveillance Authority indicates parallel rights for
students in the EEA. A similar understanding might be hinted at from the EFTA
Court in Jabbi in paragraph 51. However,
what is striking in Jabbi is a
renewed attention by the EFTA Court to limit the impact of its decision
regarding national welfare systems and to be explicit about differences in the
two legal orders.

In paragraphs
78 and 82 of the Advisory opinion the EFTA Court refers to the citizens'
Directive Article 7(1)(b) to apply by analogy to the situation of a returning
own national. The Court makes this reference stating that a derived right
depends on the conditions in this Article to be fulfilled (in addition to other
conditions familiar from CJEU Union citizenship case law regarding 'genuine
stay' and length of stay for the Union citizen to find him/herself in a
cross-border situation). One possible interpretation of the statements made by
the EFTA Court in these paragraphs is the possibility to maintain national
requirements for family reunification in terms of financial means available for
the sponsor. This understanding of the opinion is based on the Court repeated
references to family reunification in the home state to be conditioned upon the
requirements in Article 7(1)(b) to be fulfilled also in the home state upon
return (see paragraphs 80 and 82).

Given this
interpretation of the advisory opinion the extent to which the rights of Mr
Jabbi to fall within the scope of EEA law to actually be of any concrete assistance
is questionable. The right to family reunification for Mr Jabbi is ultimately
conditioned on the sponsor fulfilling the criteria of sufficient means and
medical insurance as enshrined in Article 7(1)(b) of the Citizens Directive
meant to ensure that no unreasonable burden is placed on the national welfare
systems. In this, the EFTA Court seems to have respected national conditions in
Norwegian domestic immigration law where family reunification is conditioned on
certain requirements regarding sufficient means. Another consequence of this
reading of the advisory opinion is the extent to which both static citizens and
returning non-economically active citizens would be treated alike in domestic
legislation.

The Union
citizenship case law of the CJEU has always been directed towards efficient
rights for the Union citizen and aiming at eliminating differences between the
economically active and the non-economically active. Having said this more generally the recent restrictive
case law from the CJEU on host state obligations based on Union citizenship in
cases like C-333/13 Dano,
C-67/14 Alimanovic
and the recent
case on restricting the export of child care benefits from the UK, C-308/14
should also be mentioned. It may be argued that the EFTA Court's opinion in Jabbi is in line with this recent case
law when the EFTA Court demonstrates deference to its decisions having an impact
on domestic welfare systems. The spirit of Union citizenship case law and in
particular the home state obligations enshrined in the recent CJEU case law on
students' rights is, however, not apparent in the Jabbi case. On the contrary the EFTA Court seems more reluctant and
albeit focusing on the aim of homogeneity to also for the first time pointing
at possible differences occurring between the two legal orders due to
differences in the legal framework.

The
institutional practice of EEA law from EU/EFTA institutions seems to
consistently aim at paralleling free movement rights for persons in the EEA as
compared to the EU. The general point to make here is nevertheless that the
provisions on free movement rights for persons in the EEA Agreement are
substantively different to their EU counterparts. This difference was pointed
to in the Wahl case (paragraph 75)
but the Jabbi case is the first time this
difference is elaborated on by the EFTA Court (in particular paragraph 62). In the EEA, the free movement of persons include
the free movement rights for the economically active to facilitate the economic
aim of the internal market. However, outside the economically active, rights
are limited and there is neither the status of Union citizenship nor the
overarching aim of an 'ever closer Union'. The rights of non-EU citizens are in
principle outside the scope of the Agreement. Furthermore, institutional
practice in the EEA is subject to the decisions made by the Contracting Parties
in the political organ of the EEA Joint Committee. Free movement rights for persons
are not the same in the EEA compared to in the EU. Whether they are
sufficiently different to be of interest to the UK and the EU for future
association remains to be seen.

1 comment:

Where EU Citizens move to EEA/EFTA-states, their movement rights follow from the EEA Agreement. It will be interesting to see wheter the CJEU will adhere to the EFTA Court's interpretation of Directive 2004/38/EC where an economically inactive EU Citizen marries a 3rd country National in Iceland, Liechtenstein or Norway, and then returns to his or her home state. As homogeneity within the EEA also requires equal interpretation and application of EEA Law in the EFTA pilar and the EU pilar, The CJEU will, if homogeneity is to be achieved, have to rule that directive 2004/38/EC, where applied in an EEA setting, "by analogy" gives rights towards the home state the directive does not give when applied in an EU setting.